1. This is a suit brought to restrain an alleged infringement of copyright. The plaintiffs are the proprietors, registered under 5 and 6 Vic, c. 45, of the copyright of a work published under the title of 'The Golden Treasury of Songs and Lyrics.' The book contains a selection, made by Mr. Palgrave, from the poems of many English authors of various periods. It is divided into books, each book corresponding to a period of literary history. The poems in each book are arranged, not in the chronological order of their production, but, as the preface says, 'in gradation of feeling or subject.' At the end of the work are placed a summary of each book, and some notes critical and explanatory. The fourth book contains selected poems of Wordsworth, Coleridge, Hartley Coleridge, Southey, Hood, Wolfe, Shelley, Allan Cunningham, Keats, Charles Lamb, Byron, Scott, Campbell and Moore.
2. The plaintiffs complain that the defendant has infringed their copyright by the publication of a book which he has issued, under the title 'Select Short Poems, Part X, with copious notes, criticisms, and question-papers, etc., prescribed for the B. A, Examination of the Calcutta University for the year 1890, and for the first B. A. Examination of the Bombay University.' These poems are the same selection as those in the fourth book of the Golden Treasury; and that the selection was borrowed by the defendant is beyond all doubt, because what was set as a text-book by the Calcutta University was the fourth book of Mr. Palgrave's work, Titles affixed by Mr, Palgrave to certain poems have also been borrowed; and a good many of his notes have been copied, some with acknowledgment and some without. On the other hand, the arrangement of the poems has been altered. Those of each author are placed together, and in the order of their composition. In one poem of Shelley the defendant prints forty lines which Mr. Palgrave had omitted; in one of Wordsworth one line. In many places there are differences of reading, and in more of punctuation. Whether these differences are mainly due to the editor or to the printer I cannot say. The defendant has prefixed to the poems of each author a biographical notice; and with each poem he gives a mass of notes and other critical and explanatory matter. Mr. Palgrave's summary of his fourth book is not given.
3. The main question is whether the defendant's book is a piracy of Mr. Palgrave's. If the question had turned only on the notes which have been borrowed, I should not have been prepared to answer that question in the affirmative. The defendant's book purports to be a sort of variorum edition of the poems; it gives explanations and critical estimates derived from many sources; and the notes taken from Mr. Palgrave are not many in number, and bear a very small proportion to the whole mass of annotations.
4. But Mr. Palgrave's selection of poems has. been borrowed by the defendant, and the important question is whether that is an infringement of copyright. And first I have to consider whether there is copyright in a selection. There has not, so far as I know, been any actual decision upon this question. But upon principle I think it clear that such a right does exist; and there is authority to that effect as weighty as anything short of actual decision can be. In the case of works not original in the proper sense of the term, but composed of, or compiled or prepared from materials which are open to all, the fact that one man has produced such a work does not take away from any one else the right to produce another work of the same kind, and in doing so to use all the materials open to him. But, as the law is concisely stated by Hall, V.C., in Hogg v. Scott L.R. 18 Eq. 444, see page 458, "the true principle in all those cases is, that the defendant is not at liberty to use or avail himself of the labour which the plaintiff has been at for the purpose of producing his work, that is, in fact, merely to take away the result of another man's labour, or, in other words, his property." I think it unnecessary to refer in detail to the cases; it is enough to say that this principle has been applied to maps, to road books, to guide books, to street directories, to dictionaries, to compilations on scientific and other subjects. This principle seems to me clearly applicable to the case of a selection of poems. Such a selection as Mr. Palgrave has made obviously requires extensive reading, careful study and comparison, and the exercise of taste and judgment in selection. It is open to any one who pleases to go through a like course of reading, and by the exercise of his own taste and judgment to make a selection for himself. But if he spares himself this trouble and adopts Mr. Palgrave's selection, he offends against the principle. In Longman v. Winchester 16 Vesey, 269, see page 271 at p. 271, Lord Eldon laid down the principle I have stated, and referred to various cases to which it had been applied or was applicable, and said: "So in the instance mentioned by Sir Samuel Romilly, a work consisting of a selection from various authors, two men might perhaps make the same selection; but that must be by resorting to the original authors, not by taking advantage of the selection already made by another." And this passage is cited as an authority by Lord Hatherley, then Vice-Chancellor, in Spiers v. Brown 6 W.R. Eng. 352, see page 353. I am of opinion that the selection of poems made by Mr. Palgrave and embodied in the Golden Treasury is the subject of copyright, and that the defendant's book has infringed that right.
5. Some other points of a more or less technical nature were raised on behalf of the defendant. It was pointed out that the book registered was registered as first published in 1861, whereas the infringement charged is of an edition of 1882; it was contended that it ought to be proved affirmatively that the poems in the edition of 1882 were contained in that of 1861, and Murray v. Bogue I Drew. 353 was cited. In the absence of any reason to suppose the contrary, I thick it is reasonable to assume that successive issues of a book of this kind, under the same name, are substantially the same book.
6. It was next contended that the author of the book being Mr. Palgrave, in whom the copyright would prima facie be, and the property being registered as in the present plaintiffs, the registry is bad because it does not show an assignment to them. But the Act does not seem to me to require any such thing; and it has been so held in Wcldon v. Dicks L.R. 10 Ch. D. 247.
7. It was further contended that the registration was bad because it contained the firm and business address of the plaintiff's, and not the individual names and addresses of the partners in the firm. But this is contrary to the view expressed by Kindersley, V.C, in Low v. Routledge 33 L.J. h. 717, see page 724, and that acted upon by Malins, V.C., in Weldon v. Dicks L.R. 10 Ch. D. 247. which I follow.
8. Then it was contended that the publication of the defendant's book having been before the registration, this suit would not lie. But it is clear that the title to copyright is complete before registration, which is only a condition precedent to the right to sue. This is made very clear by the reasoning in the judgments in Tuck v. Priester L.R. 19 Q.B.D. 629, decided on another Act. And it was expressly so held in Gouband v. Wallace 25 W.R. Eng. 604, W.N. 1877, 130.
9. Lastly, reliance was placed on Section 26 of the Act, which, it was suggested, prescribed one year as the period of limitation for such a suit as the present. But, assuming that a rule of limitation in the Act would be applicable in this country, the decision in Hogg v. Scott L.R. 18 Eq. 444, negatives the contention.
10. There will be a perpetual injunction restraining the printing or sale of the defendant's book as being an infringement of the plaintiff's copyright, with costs on scale 2.